Teale

I concur in the affirmance of the judgment relating to guilt. I do so reluctantly because I think that under the rules laid down in Preston v. United States, 376 U.S. 364 [ 11 L.Ed.2d 777 , 84 S.Ct. 881 ], the search and examination of the automobile were illegal. But as I have already pointed out in my concurring opinion in People v. Webb, 66 Cal.2d 107, 128 [ 56 Cal.Rptr. 902 , 424 P.2d 342 ], the Preston ease has, in effect, been overruled by the majority rule adopted in Cooper v. California, 386 U.S. 58 [ 17 L.Ed.2d 730 , 87 S.Ct. 788 ]. Solely by compulsion of the rule laid down in that ease, I agree that the rule of Preston is not applicable.

I also concur in that portion of the majority opinion reversing the judgment insofar as the penalty is concerned.

In an indictment found on November 16, 1962, defendant Thomas Leroy Teale and Ruth Elizabeth Chapman were accused of robbery (Pen. Code, §211), kidnaping for the purpose of robbery (Pen. Code, § 209); and murder (Pen. Code, §187). After a joint trial by jury each was found guilty of robbery in the first degree, simple kidnaping (a lesser offense included within the offense charged), and murder in the first degree. As to the murder count the jury imposed the penalty of death upon defendant Teale and the penalty of life imprisonment upon Mrs. Chapman. On appeal this court affirmed the judgment as to defendant Teale; as to Mrs. Chapman the judgment was reversed insofar as it imposed punishment for robbery and kidnaping and affirmed in all other respects. (People v. Teale (1965) 63 Cal.2d 178 [ 45 Cal.Rptr. 729 , 404 P.2d 209 ].)

The United States Supreme Court granted certiorari (Chapman v. California, 383 U.S. 956, 957 [ 16 L.Ed.2d 300 , 86 S.Ct. 1228 ]) and reversed the judgment, holding that error in the trial resulting from a violation of the rule in Griffin v. California (1965) 380 U.S. 609 [ 14 L.Ed.2d 106 , 85 S.Ct. 1229 ] required that a new trial be had because the state…